857 F.

2d 1392

UNITED STATES of America, Plaintiff-Appellee,

v.
Donald R. DANIELS, Defendant-Appellant.
No. 88-1511.

United States Court of Appeals,

Tenth Circuit.
Sept. 23, 1988.

John S. Morgan, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him
on the brief), Tulsa, Okl., for plaintiff-appellee.
Philip K. Blough II, Tulsa, Okl., for defendant-appellant.
Before HOLLOWAY, Chief Judge, and BRORBY and McWILLIAMS,
Circuit judges.
McWILLIAMS, Circuit Judge.

In a one-count indictment filed on June 4, 1987, Donald Daniels and Larry

Kochevar were charged with conspiracy to manufacture amphetamine in
violation of 21 U.S.C. Sec. 846. Daniels filed a motion to dismiss based on
double jeopardy grounds. After several hearings, the district court denied
Daniels' motion.* Daniels appeals. See Abney v. United States, 431 U.S. 651,
97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We affirm.

The basis for Daniels' double jeopardy argument is that on August 19, 1986, he
pled guilty to another charge of conspiring to manufacture amphetamines and
was sentenced to four years imprisonment. Daniels' position is that the present
indictment charges the same offense to which he earlier pled guilty, and that,
accordingly, prosecution under the present indictment violates the Double
Jeopardy Clause of the Fifth Amendment.

The government's position is that the conspiracy charged in the present

indictment is a different conspiracy from the one to which Daniels previously

pled guilty, and hence, there being two distinct conspiracies--not one continuing
conspiracy--the double jeopardy argument is unavailing.
4

On January 9, 1986, Daniels was charged with his brother, John Daniels, and
four others with conspiracy to manufacture amphetamines. Kochevar, Daniels'
co-defendant in the instant case, was not named as a co-defendant in the first
indictment. That particular conspiracy was alleged to have existed from
January, 1981 through January, 1986. As indicated, Daniels pled guilty to that
charge on August 19, 1986.

The present indictment was filed on June 4, 1987, and charges Daniels and
Kochevar (and no one else) with conspiring to manufacture amphetamines from
June 1, 1985 through June 30, 1986. Both indictments were filed in the United
States District Court for the Northern District of Oklahoma, and each set forth
different overt acts.

It is agreed that if two charges of conspiracy are in fact based on a defendant's

participation in a single conspiracy, the former jeopardy clause bars the second
prosecution. Wilkett v. United States, 655 F.2d 1007, 1014 (10th Cir.1981),
cert. denied, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). As
indicated, the government's position is that although the instant indictment
charges a violation of the same statute as did the earlier indictment, the present
indictment is based on a different set of facts than the earlier indictment and
represents a separate and distinct conspiracy from the earlier one. Daniels
argues that it was but one conspiracy.

In ruling on Daniels' motion to dismiss, the district court had before it a

transcript of grand jury proceedings in the instant case as well as testimony
adduced at trial on the first indictment, some of the defendants, although not
Daniels, having gone to trial. Also, several witnesses testified at the hearing on
the motion to dismiss. Based thereon, the district court found that Daniels'
conspiracy with his brother and others, which was the basis for the first
indictment, terminated sometime during the summer of 1984 when Daniels
"split" with his brother, and that Daniels thereafter formed a new conspiracy
with Kochevar to manufacture amphetamines. We believe this finding is
supported by the testimony given by the witness Kress at the trial on the first
indictment. The fact that there may have been some grand jury testimony to the
contrary concerning this "breakup" of the Daniels brothers does not alter the
fact that the district court found, and the record supports the finding, that
Daniels terminated his conspiracy with his brother and then entered into a
second conspiracy with Kochevar.

It should be noted that we are here concerned with the denial of a pretrial
motion to dismiss based on double jeopardy grounds. This is not the situation
where a defendant, after conviction, seeks reversal on appeal on the ground of
double jeopardy. Counsel concedes that Daniels had the burden of establishing
that the two offenses contained in the two indictments are the same offense
both in law and fact. United States v. Jones, 816 F.2d 1483, 1486 (10th
Cir.1987); United States v. Castro, 629 F.2d 456 (7th Cir.1980). Although
conceding that Leslie Kress testified at the earlier trial that the Daniels brothers
broke up in 1984, counsel argues that Daniels nonetheless met his burden
through the testimony of George Akins before the grand jury which indicated,
perhaps, that there was no such breakup. Such difference, of course, only posed
a fact issue necessarily involving credibility. The district judge relied on the
Kress testimony, which he had the right to do as a fact finder. We are not
inclined to disturb his finding.

We conclude that the district court did not err in holding that Daniels had failed
to establish in the pretrial hearing that his second prosecution was in fact and in
law for the same offense to which he had previously pled guilty. If in the
ensuing trial it should develop that in fact and in law there was only one
conspiracy, not two, appropriate action can be taken at that time. In the
meantime, we hold that based on the present record Daniels cannot forestall
trial.

10

JUDGMENT AFFIRMED.

Prior to denying Daniels' motion to dismiss, the district court had granted
Daniels' motion for a bill of particulars and a motion for production of grand
jury testimony